Injunctions: A Powerful Tool for Co-op and Condo Boards

David Berkey, partner at Gallet Dreyer & Berkey, joins Paula Chin of Habitat Magazine to discuss how co-op and condo boards can use injunctions to enforce rules and maintain community standards. Learn about the legal mechanisms boards can employ when default notices and fines fail, including compelling tenants to address issues like hoarding or dangerous behavior, and preventing unauthorized activities that threaten building safety and community harmony.

The business of running a building is demanding work that requires making endless decisions — some that can quickly lead your board into a quagmire of legal difficulties. Legal Talk interviews New York's leading co-op/condo attorneys to find solutions, and get some guidance, on these challenges. For more co-op and condo insights, sign up to receive Habitat's free newsletters or become a Habitat subscriber today!

Transcript

Paula Chin: Welcome to Legal Talk, a conversation about governance issues that New York co-ops and condo boards are tackling today. I'm Paula Chin with Habitat, the New York City magazine for co-op and condo board directors. My guest today is David Berkey, a partner at Gallet Dreyer and Berkey, who's here to talk about one of the best tools boards have in their toolbox: the injunction.

David, what is an injunction and when does it come into play? 

David Berkey: First, good morning, Paula. Nice to talk to you. 

Paula Chin: Good morning. 

David Berkey: An injunction is one of the strongest tools that a co-op or a condo board can use to compel compliance with proprietary leases, house rules, or in a condo, the bylaws or rules and regulations.

It is a court order. It directs someone to perform an act to do something affirmatively-- that would be a mandatory injunction-- or it can also prevent someone from engaging in improper conduct. And you could either get a restraining order or a prohibitory injunction to prevent such conduct from continuing.

The benefit of getting a court order is enforcement mechanisms. If you get a court order, in theory, the person that's directed to behave in a particular way should follow it. But if they do not, then that person can be subject to contempt of court. They can be fined, and in extreme cases, they could be incarcerated for ignoring the court's order.

Paula Chin: Can it go further beyond that in terms of what a board can do, for example, is that the last step before termination? 

David Berkey: We often use injunctions because a board does not want to engage in terminations. Lemme give you an example. Let's say you have an elderly tenant shareholder in a cooperative, that is a hoarder, and that person is collecting trash, creating a fire hazard, creating a nuisance, creating a vermin problem. And despite the board sending default notices, attempting to get this particular shareholder to cure the hoarding condition, those notices are being ignored.

So the board in such case probably will have compassion for the shareholder, does not want to terminate the proprietary lease and throw the person out of the building. So what can they do? They go to court, they get an injunction. The injunction directs that tenant shareholder to either clean up the apartment or provide access to the cooperative so that it can send its contractors in to clean up the apartment and eliminate the nuisance condition and the dangerous condition.

This way, the board is achieving the result that it wants. Note that the costs of getting an injunction to enforce the terms of a proprietary lease or house rules are reimbursed by the shareholder to the cooperative. It's an expense that can be recaptured. 

Paula Chin: David, you mentioned a co-op. Is the situation different for condos when it comes to injunctions? 

David Berkey: Okay. Let's talk about the mechanisms that condominium boards have to enforce their bylaws and their rules and regulations.

First of all, the condominium unit owner does not have a lease, so that owner cannot be evicted from the unit. So what a condominium board has to do, is to send a default notice to impose a fine for the violations, and fines can be stepped up if the violations continue. And sometimes they can be draconian. But condo boards often find that unit owners don't care about the fines.

They just wanna behave the way they wanna behave. So then a condo board, because it can't evict the unit owner has to use the injunction mechanism. And most condominium bylaws provide that when there is a violation of the rules and regulation or the bylaws or the declaration, the board can act to enjoin, abate or remedy by appropriate legal proceedings in law or equity, and that means getting an injunction, the continuance of any such wrongful conduct.

So condo boards will use injunctions because they don't have the eviction tool that co-op board have. 

Paula Chin: In that case with the injunction, can a condo board force a sale? 

David Berkey: That is very rare, and I honestly have never seen it done. I have seen condo boards getting a court order, preventing the unit owner from occupying his unit because of the improper conduct that he's engaging in.

I'll give you an example. We represented a condo on the West Side that was doing a lot of Local Law 11 work. There was scaffolding outside the building. The unit owner decided to throw parties, invite his friends into his unit, open up the windows and let them do acrobatics on the scaffolding outside the building.

It was endangering their lives, the lives of the people below, was a clear violation of the rules and regulations, and we got a court order enjoining the conduct, preventing it from continuing, directing that the particular guests who were the worst offenders could not come into the building, and requiring the unit owner to stay out of the building. So you don't evict, but you might be able to prevent the improper conduct from continuing by barring the unit owner from the unit.

Paula Chin: And I assume the unit owner would still have to pay common charges. So the condo board isn't out of pocket. 

David Berkey: That's correct. And as I said before, reimburse the condo for the cost of getting the injunction and the orders directing him to behave. 

Paula Chin: I'm curious with that acrobatic , if there had been an injury, who's liable? 

David Berkey: That's a good question, Paula. Certainly the unit owner would have responsibility for allowing the person to go onto the scaffolding. The duty to protect your guests, is really the unit owner's duty. The board probably would not have liability, but you can be sure if there was a lawsuit brought, the board would be added as a party.

So their insurance carrier would defend. 

Paula Chin: Okay. Good news for boards. Getting back to fines at condos, what's a typical amount and is there like a schedule of escalating fines? What, are the usual steps? 

David Berkey: Okay. I'll give you an example. We have one condo which adopted a stepped up schedule, a thousand dollars for the first offense, $3,000 for the second defense, 5,000 for the third, excuse me.

And if the conduct continued, the last fine is in an amount that the board believes will deter the improper conduct. So it could be $10,000 or more.

Paula Chin: In this case, was that successful? 

David Berkey: No. The conduct continued. The unit owner didn't care about the financial burden that was being put on him by the fines, so we had to go to court. 

Paula Chin: And what happened?

David Berkey: The condo board got the order that it sought. It barred the particular unit owner from having the parties. Barred the unit owner's guest from coming into the building. Barred the unit owner from occupying the unit for a significant period of time. So the condo got a home run. 

Paula Chin: Now, either way, whether it's a co-op or condo and they seek an injunction.

What kind of preparation, say documents or evidence do they need? And in general are the courts always almost in favor of the co-op or condo board? 

David Berkey: Usually you don't go to court unless you have a very serious problem, and so the courts are usually supportive of the co-op board or the condo board and try to work out an order that will resolve the problem.

The types of documents that you need a complaint. You need either a summons or an order to show cause, which requires the unit owner to appear and to respond to the allegations in the complaint so that the court can make a determination whether an injunction ought to be granted. You need affidavits that are supporting the request for an injunction and lay out all the facts and the problems that are being caused by the apartment or the unit owner. In situations such as access requirements to perform Local Law 11 work, you should get a professional engineer to provide an affidavit explaining why the lack of access is delaying the Local Law 11 job and costing the co-op or the condominium many tens of thousands of dollars because of the delays, and you need a memorandum of law.

And that outlines the requirements for an injunction and how the particular facts here meet those requirements. 

Paula Chin: Going back to your two examples. With the hoarder and I imagine as you said, odors and vermin. When you say affidavits, would that include documenting every time there was a problem?

Would that include getting affidavits from neighbors, for example? 

David Berkey: Yes and yes. So Paula, you have to be careful to make detailed records showing the dates and the times when the problems occur. You need the neighbors to explain how they are seriously bothered by the odors, by the vermin, by the other problems that are being caused.

So from an equity standpoint, which means essentially fairness, if a court can see that the neighbors are being harassed by the problem, that the board's trying to fix it, and the apartment owner or the unit owner couldn't care less, the board is going to be the winner because the court will lean towards giving the board the relief that it wants.

Paula Chin: And I assume the court prevailed in terms of the wild parties, ? 

David Berkey: The court certainly stopped those things from happening. Okay. The board prevailed in that case. The court gave the relief that was requested. 

Paula Chin: David, what would you say? The takeaway here is for co-op and condo boards? 

David Berkey: The takeaway is that boards should realize they have an option.

Okay, that if their efforts sending default notices, maybe imposing fines, trying to talk to the apartment owner or unit owner, are all unsuccessful, then they should use the injunction path, that tool, in order to get relief from the courts. Because as I said before, I wanna reiterate, you can recover the costs that you incur to enforce your lease, your bylaws, and your rules.

Paula Chin: So I imagine the bottom line is that when your efforts don't work, you seek an injunction and you get the leverage of the courts behind you. 

David Berkey: That's correct. Most people will abide by a court order. 

Paula Chin: David, this has been really instructive, I believe, for our co-op and condo boards, and thank you so much for joining us today.

David Berkey: My pleasure, Paula. Have a great day.